M. Shahidul Islam
Unlike war, politics must not be a perpetual battle to annihilate the opposition. Politics must offer wiggle room and the necessary space for compromise; and, the opposition must be a part of the equation to any given problem.
The protracted political crisis battering the country stems from the government’s hurried amendment of the Constitution on the pretext of a court decision, and, most importantly, the annulment of the caretaker provision under which reportedly credible elections were held since 1996 pursuant to the 13th Amendment.
Unprecedented, unsustainable
The alacrity, with which the 15th amendment was consummated, smacked danger, proved unprecedented and remains unsustainable. No sooner the Appellate Division of the Supreme Court rendered its ruling on the validity of the caretaker government on May 17, 2011, declaring the 13th amendment of 1996 too as null and void — yet not foreclosing the avenue for a smoother transition of power by stating that the 10th and the 11th parliamentary elections may be held under the caretaker government — the Government misused its brute parliamentary majority to create a hodgepodge of a Constitution that had otherwise lost its fundamental facades years before.
The judgment was not only misinterpreted by the ruling coterie, the Constitution was amended forthwith without even waiting for the final version of the judgment to come. Act No 14 of 2011 (the 15th Amendment) was passed on July 3, 2011, and, along with it were thrown away a host of fundamental issues; inclusive of the caretaker provision, the model for which is being emulated by many nations to overcome deadlocked constitutional crisis in replacing governments.
Worst still, the 15th Amendment created an unprecedented precedence in the history of the world by allowing election to take place while the incumbent government, as well the parliament, would remain valid, functional and fully authoritative.
All power on Prime Minister during poll-time interregnum
At the interpretive level, the 15th Amendment vested all the power of the republic on the persona of the Prime Minister during the poll-time interregnum by striking off Article 58 (A). This will have created a one-person dictatorship prior to the polling due to following reasons:
One: Deletion of Article 58 (a) destroyed all the checks and balances hitherto preserved by a President during the poll-time interregnum. Article 58(a) stated: “ Nothing in this Chapter, except the provision of article 55(4), (5) and (6) shall apply during the period in which Parliament is dissolved or stands dissolved: provided that, notwithstanding anything contained in Chapter 11(a), where the President summons Parliament that has been dissolved to meet under article 72(4), this Chapter shall apply.”
Two: The annulment of Article 58(A) has the potential to impact radically the rule of law, degree of executive power to be exercised by the Prime Minister, and, the outcome of the election by rendering dysfunctional the following Articles too.
Three: Article 55(4) stipulates that “All executive actions of the Government shall be expressed to be taken in the name of the President.” The President now stands devoid of that power and a Prime Minister, whose tenure in office will be deemed expired upon the expiration of the Parliament’s tenure, will have exercised that supreme executive authority without any checks and balances.
Four: Article 55(5) states, “The President shall by rules specify the manner in which orders and other instruments made in his name shall be attested or authenticated, and the validity of any order or instrument so attested or authenticated shall not be questioned in any court on the ground that it was not duly made or executed.” That rule-making power of the President has vanished, but the necessity to make unforeseen rules during the crisis remains.
Five: Most importantly, the annulment of Article 58(A) has stripped the last vestige of authority of the President to make rules relating to the allocation and transaction of the business of the Government, vested hitherto on him by Article 55(6).
Fundamental flaws: Presidential power on Prime Minister
Stripping one off power does denote that another one is empowered to exercise that power. The 15th amendment has vested that Presidential power on Prime Minister who is otherwise statute-barred from holding onto power due to the expiration of her tenure in office.
Besides, she is purported to be untrustworthy to her own party loyalists; given that over 90 per cent of the population still prefers a caretaker regime to hold the poll, according to opinion poll.
Constitutional amendments must not be seen by politicians as an exercise akin to changing designs of costume. Empowering the partisan Prime Minister of an expired regime to exercise all the executive power of the nation during an election period, which is not seen anywhere in the world, entails fundamental flaws.
As well, something of more serious nature has also occurred due to the coming into force of the 15th Amendment. It has turned the Presidency into a dysfunctional institution at a time when the President, as the head of the country, could use his authority to impose some semblance of stability into a virtual boiling cauldron that is often the poll-time political ambiance in Bangladesh is. This time, it is destined to be more hazardous.
Referendum omitted
More ominously, the procedure adopted in amending the Constitution was wrong.
Article 142(1)(A) states when a Bill is referred to the President for his assent relating to amending the Preamble to the Constitution and any provisions of Articles 8, 48, or 56, “the President shall, within the period of seven days after the Bill is presented to him, refer to a referendum the question whether the Bill should or should not be assented to.”
The 15th Amendment came into force without following such an indispensable procedure despite it having amended the Preamble to the Constitution relating to (1) “In the name of Allah, the Beneficent, the Merciful” at the beginning of the Preamble; (2) replacement of “historic war for national independence” by “a historic struggle for national liberation” in para one of the Preamble, and; (3) replacement and alterations of the state ideals in para two of the Preamble.
Such a mistake is indefensible in the realm of law. If it is argued that the amendments relating to the Preamble to the Constitution relates to the Amendment inserted pursuant to the ‘court-rejected 5th Amendment,’ and hence, a referendum was not needed to change those seemingly sacrosanct fundamentals, the same principle can be emulated by a future government to amend the Preamble likewise. That is neither desirable, nor conducive to pursuing cohesive national interest goals.
It is from such a standpoint that the propaganda and the hedonistic spinning of the government that the ongoing movement of the opposition parties is all about derailing the war crime trial seems like the junk politics of a misguided society that must be put aside for now. At the same time, the parliament must be convinced to annul the 15th Amendment so that the incumbent Prime Minister does not stand on the way to holding a credible poll which alone can pull this nation away from the dark abyss it finds itself in now.
Source: Weekly Holiday
Time has firmly proved that the provision 70 has castrated politicians of all parties. Since they’ve proved that they don’t actually represent the people who vote them, they prefer to hang on to the feet of the party boss. And democracy has in truth become a donkey, a beast of burden of the party boss. We learned from newspapers that 7 out of 8 amicus curie and the parliamentary party responsible for vetting the SC verdict to be placed in the Parliament were for the CTG for another two terms, but everything was upset after it reached the PM who with one single stroke turned the table upside down. And after that we heard the loud chorus echoing the PM just a pack of jackals howls in chorus with their leader. Now anyone with common sense can understand that this was not done by the PM without a strong backing from somewhere. And her subsequent moves make us all understand that she is determined to go on with her program at any cost whatsoever even if the country goes to hell.